On June 30, 2004, a landmark case was handed down by the Fourth District Court of Appeals in the state of California. The court ruled that parents have a right to challenge the Orange County social services' decision to file a report with the Child Abuse Central Registry Index in Sacramento. This is a landmark decision because there is no statutory authority in California for this type of review.

By way of background, the plaintiff in the case was investigated for child abuse by the Orange County Child Protective Services Agency (CPS). As a result of that investigation, the plaintiff's child was removed from her custody for two days. The child was then returned to the parent after determining that no laws had been violated and that there was not sufficient evidence to justify the filing of a petition in juvenile court for abuse or neglect.

Several months after concluding the investigation, the county sent the plaintiff written notice that it had transmitted a child abuse report to the Department of Justice in Sacramento concluding that the alleged abuse was not "unfounded."

California law requires that the agency conducting a child abuse or neglect investigation forward to the Department of Justice a written report of known or suspected child abuse or severe neglect after the agency has conducted its investigation and made its determination that the report of child abuse and/or neglect was not unfounded. Additionally, the agency is required to notify the known or suspected child abuser that he/she has been reported to the Child Abuse Central Registry Index. The Department of Justice is required to maintain the report for 10 years unless the report is later determined to be unfounded.

The parent contested the conclusion by the agency of not "unfounded" and demanded a hearing with an opportunity to offer evidence, call witnesses and examine witnesses whose statements and testimony were considered by the agency in reaching its decision. The county responded that they were not required under the law to provide such a hearing and refused to do so.

The parent then filed her lawsuit in Orange County asking the court to grant a hearing to review the agency's findings. The trial court denied the parent's request agreeing with the county agency that there was no legal or statutory authority for such a hearing in California, and the parent appealed.

The Appellate Court, in reversing the trial court's decision, found that a parent's name in a child abuse registry implicates the family's privacy interest which is protected by the Due Process Clause of the Fourteenth Amendment to the US Constitution which prohibits the government from taking away liberties without due process.

The Appellate Court ordered the trial court to provide a hearing for the parent to ensure an independent review of the agency's determination. There is no formal process or procedure for the hearing in California, so the Appellate Court ordered that the hearing on the merits of the plaintiff's petition be sufficient to protect the parent's right to due process.

The practical application of this decision is that it provides a review process for parents who have been investigated for child abuse and neglect when the conclusion of the investigation does not result in an unfounded report.

Many states have laws in place that set out the procedure to challenge CPS decisions. California does not. This case is critically important to establish these due process protections for parents and others that are investigated for child abuse and neglect and are not satisfied with the result.

At the conclusion of an investigation, CPS must notify the person investigated for abuse or neglect if the finding is anything other than "unfounded." Should that occur, the parent could demand an impartial hearing in order to be able to confront the evidence against them and to present evidence on their behalf. If CPS refuses to grant a hearing, the case, Burt v. County of Orange, 120 Cal.App.4th 273, 15 Cal.Rptr.3d 373, permits the parents to then file a petition for writ of mandate to compel the hearing.

When there are so many bad decisions coming down from our courts, it's encouraging to find courts that will still follow the law and appropriate legal precedent as did the Fourth District Court of Appeals court, Division 3. This case represents a major victory for parents in California that have gone through child abuse and neglect investigations and are not satisfied with the outcome. Now there is a clearly established right to contest that outcome with a neutral decision maker.